Pennsylvania: House member circulating plan to impeach state supreme court for gerrymandering decision; latest in 13-year national trend to threaten impeachment for judicial rulings

The latest in a decade-long trend of threatening judges with impeachment for their decisions has now appeared in Pennsylvania. Recently 5 members of that state’s Supreme Court found the state’s congressional districts unconstitutional under the state’s constitution.

The court ordered the legislature and governor to come up with a new map or the court would devise its own.

In response, a member of the House is now circulating draft impeachment articles against the 5 justices for co-sponsorship. In the supporting memo, the lead sponsor claims.

This Order overrides the express legislative and executive authority, found in Article IV, Section 15 of the Pennsylvania Constitution, concerning the Governor’s veto authority and the General Assembly’s subsequent authority to override such veto. Article IV, Section 15 clearly lays out the path a bill must take to become law.

The five Justices who signed this order that blatantly and clearly contradicts the plain language of the Pennsylvania Constitution, engaged in misbehavior in office.

Wherefore, each is guilty of an impeachable offense warranting removal from office and disqualification to hold any office or trust or profit under this Commonwealth. I would ask you to please join me in co-sponsoring this legislation.

This is the latest in a decade or more of similar efforts that started around 2004 and peaked in 2011/2012 with a record number of such efforts (detailed here and here) when 14 bills in 7 states sought the impeachment of numerous judges, including the entire Superior Court of New Hampshire.

Washington: bills would require Administrative Office of the Courts assist in developing fiscal impact notes for WA Supreme Court decisions

The ongoing issue of K-12 funding in Washington, as well as the corresponding lawsuits and determinations of the state’s supreme court in this area, once again appears to be coming to the fore in the legislature.

HB 2636 and SB 6405 would require the state’s Administrative Office of the Courts working with the executive branch’s Office of Financial Management develop fiscal impact notes for decisions with an impact of over $500,000 to either state/local government or individual people or businesses.

Both bills are currently pending in committee.

Oklahoma: House bill would make papers/documents of District Court judges subject to Oklahoma Open Records Act

Oklahoma’s Open Records Act defines “records” for purposes of the act and generally requires such records of any “public body” be open to the public. There is an explicit exemption for judges, however, from the definition of “public body” except as to public funds.

Except for the records required by Section 24A.4 of this title [related to expenditure of public funds], “public body” does not mean judges, justices, the Council on Judicial Complaints, the Legislature, or legislators

At least one member of the House, however, wants to release to the public the documents of District Court judges in the state. Under HB 2867 as flied.

  1. The definition of “public body” would now include “district court judge”
  2. The general exemption of records of “judges” would no longer include district court judges.

HB 2867 has been prefiled for the 2018 session.

Ohio: Senate approves resolution directing Ohio Supreme Court justice show cause before the legislature why he should not be removed from office

A plan to remove-by-address Ohio Supreme Court William O’Neill was filed earlier this week (news reports here and here) approved by the Senate 25-8 yesterday.

HCR 17 and SCR 20 as filed invoke the legislature’s power to remove from office a judge if 2/3rds of the House and Senate agree (Art. IV, Sec. 17).

Judges may be removed from office, by concurrent resolution of both houses of the general assembly, if two-thirds of the members, elected to each house, concur therein; but, no such removal shall be made, except upon complaint, the substance of which shall be entered on the journal, nor, until the party charged shall have had notice thereof, and an opportunity to be heard.

This is a separate from the power to impeach found elsewhere in the state constitution (Art. II, Sec. 23)

HCR 17/SCR 20 claim O’Neill has violated the state’s Code of Judicial Conduct by running for governor and announcing positions on a host of policy issues but declining to resign from the Supreme Court.

Justice O’Neill has responded that he will resign from the court on Jan. 26 and he looks forward to delivering lawmakers “a Douglas MacArthur-level farewell address.”

Iowa: After state’s chief justice issues orders limiting carrying of guns into courthouses, state senator introduces plan to dock judicial pay down to as low as $25,000

Last year Iowa enacted a law allowing expanded carrying of firearms into “public buildings” and the question arose what this meant for courthouses and courtrooms. Chief Justice Mark Cady in June 2017 issued an order in June banning courthouse carry and later following up in December 2017 with another order that narrowed the June order but that still left the decision ultimately up to the local Chief Judge.

In response, at least one member of the Iowa Senate is looking at the possibility of reducing judicial salaries.

SF 2044 as filed provides that if the supreme court or local court issues a no-carry-in-a-courthouse order

  1. The local court must pay a rent of $2 per square foot per month to the county for the area of a courthouse used by the court.
  2. The judicial branch would have to provide armed security in the courthouse. Payment for the armed security would come from the Chief Judge’s salary on a dollar-for-dollar basis until the Chief Judge’s salary hit $25,000.

SF 2044 has been filed in the Senate Judiciary Committee.

Virginia: Senate bill could open courthouses to carrying of firearms; latest in national trend

I’ve written on this blog and elsewhere (such as here) about the ongoing press in state legislatures to opening courthouses to the carrying of firearms. Now Virginia’s legislature looks to enter this area.

Current law generally prohibits courthouses carry. SB 338 as filed would provide a major exemption

However, nothing in this section shall prohibit a person who may lawfully possess a firearm or ammunition for a firearm from possessing in or transporting into any area within a courthouse that is being used outside of the courthouse’s normal hours of operation exclusively for purposes other than judicial proceedings a firearm or ammunition for a firearm.

As the official impact statement indicates “Essentially, the proposal would narrow the number of individuals who may be prosecuted for possessing or transporting a firearm into a courthouse.”

SB 338 has been filed in the Senate Courts of Justice Committee.

Mississippi: Bill to drug test judges and other elected officials filed; latest in 3 decades of bills debated/enacted on this subject

Over the last several decades there has been a push to drug test those who are on any kind of public assistance and, in response, efforts by state legislators to put the same sort of drug testing requirements on public officials, including in many instances judges (I discussed this phenomena at length here and here and here and here).

This year’s version comes from Mississippi HB 490. The bill requires annual drug testing of all elected officials, including specifically judges, to determine eligibility to receive their compensation. The language of HB 490 is effectively verbatim that of HB 472 which would require drug testing for all recipients of state or local funded benefits.

If enacted, HB 490 is likely to face a court challenge. In 1997, the same year Louisiana mandated drug testing for certain adult recipients of public assistance (HB 2435), the state enacted a process for random drug testing of all “elected officials” (HB 646). The elected officials plan was struck down in 1998 by the Federal courts when Justice of the Peace Phillip O’Neill and other elected officials challenged the law. (O’Neill v. Louisiana., E.D. La. 1998, 61 F.Supp.2d 485, affirmed 197 F.3d 1169, cert. denied 120 S.Ct. 2740, 530 U.S. 1274, 147 L.Ed.2d 2005).

Illinois: new law requires posting in public areas of courthouses detailing how to file disciplinary complaints against trial judges

A bill in the Illinois House discussed here and here that would require courthouses have postings of how to file a disciplinary complaint against trial judges has been signed into law.

HB 3054 as filed contained 3 elements

  1. All Circuit Judges must announce that a person can file a complaint against him or her with the state’s Judicial Inquiry Board prior to calling the first case of the day.
  2. The Clerk of the Circuit Court must make a Judicial Inquiry Board complaint form with instructions available.
  3. The Clerk must also post within each courtroom a notice that a person may file a complaint against the judge and that instructions for filing a complaint may be obtained from the clerk.

HB 3054 as amended and enacted removes Item 1 entirely and heavily modifies Items 2 and 3. The new bill provides

The clerk shall post in the common areas of the courthouse a notice that a person may file a complaint against the judge that includes contact information for the Judicial Inquiry Board. The Judicial Inquiry Board shall develop a uniform statewide notice and provide the format of the notice to each clerk.

HB 3054 has an effective date of January 1, 2018.


Florida: 2017 bill passed by Senate to levy civil fines and remove from office judges who try to stop the carrying of guns into courthouses already prefiled for 2018

Earlier this year I mentioned Florida SB 616. Under the 2017 bill the firearm permit holders would have been allowed to carry guns into courthouses, or at least those portions not directly used by the courts (such as courtrooms and chambers). Judges who attempted to prohibit courthouse carry were threatened with civil fines and removal from office by the Governor. It was approved by the Senate but went nowhere in the House.

Now, SB 616 of 2017 has been refiled as SB 134 of 2018. It again threatens judges with civil fines and removal from office if they attempt to issue an administrative order stopping courthouse carry or altering the definition of “courthouse” to be broader than the limited-space definition provided in SB 134 (emphasis added).

A local ordinance, administrative rule, administrative order, or regulation that is in conflict with the definition of the term “courthouse” in this subsection or the rights set forth under subparagraph (12)(a)4. is preempted to the Legislature under s. 790.33. The person, justice, judge, county, agency, municipality, district, or other entity that enacts or causes to be enforced a local ordinance, administrative rule, administrative order, or regulation that is preempted is subject to the penalties set forth in s. 790.33, including, but not limited to, civil fines and removal from office by the Governor.

SB 134 has not yet been assigned to a committee.

South Dakota: Initiated Constitutional Amendment would require judges recuse for campaign contributions; new State Government Accountability Board would have power over judges

A proposed South Dakota constitutional amendment, currently circulating for signatures, could require the state’s judges to recuse in cases involving campaign contributors.

In 2016 voters in the state passed IM 22, amending state statutes related to campaign finance and lobbying laws. While approved by voters, the legislature effectively rewrote and overturned the measure during its 2017 session.

In June proponents of IM returned with a new proposal, this time a constitutional amendment, that includes some of IM 22’s provisions and several new ones, including one focused on judges.

Under Section 11 of the proposed constitutional amendment

A judge shall avoid the appearance of bias, and shall disqualify himself or herself in any proceeding in which monetary or in-kind support related to the judge’s election or retention creates an appearance of bias to a reasonable person.

Circuit judges in South Dakota are subject to non-partisan elections, while South Dakota Supreme Court judges are appointed via a merit/commission based system and subject to yes/no retention elections.

In addition the legislatively created State Government Accountability Board would be replaced with a new board of the same name with the power to investigate both legislators and judges, including the power to adopt rules of ethics that would be binding on judges and to investigate judges for violations of those ethics or existing ethics/corruptions statutes. Moreover, the Board would have the power to impose sanctions on judges.

The initiative requires 27,741 signatures to be gathered and submitted to the secretary of state by November 2017 to appear on the November 2018 ballot.